Unit 3: The Constitution

3 branches1 from jtoma84

3.2.principles.of.us.government from jtoma84

Billofrights from jtoma84

I. Key Concepts to Review for Assessment:

• Article II of the Constitution
• Checks and Balances between the 3 Branches
• Federalism
• 1st Amendment and Symbolic Speech
• Judicial Review
• Marbury v. Madison
• Powers of the Vice President
• Process of Amending the Constitution
• Founders' view of voter qualifications
• 19th Century Doctrine of Nullification
• Direct Democracy
• Separation of Powers
• Popular Sovereignty
• Congressional Override
• 5th Amendment
• 13th and 14th Amendment
• 19th Amendment
• 2nd Amendment
• Judicial Branch's role of government
• Concurrent Powers
• Enumerated Powers
• Reserved Powers
• Implied Powers
• Separation of Powers
• Constitutional Amendments

II. Review for Federalism & General Constitutional Underpinnings:

BACKGROUND TO CONSTITUTION:

Social Contract: John Locke, natural rights (people form government to protect these rights, giving up freedom by consent of the governed but have right to overthrow gov’t if it “breaks the contract”), Jefferson uses this in Declaration of Independence

Direct Democracy (all citizens vote on all issues, ie Ancient Athens, founders didn’t trust masses) 

Representative Democracy (Republic) – people elect representatives to make policies & laws, US Theories of Control:

• Elite – small elite really makes all decisions; voters choose between elites
• Pluralism – no one group controls because of many competing interests 
• Hyper-pluralism – so many different interest groups cause gridlock & nothing gets done

Problems with Articles of Confederation:

• only legislative branch (no real head of gov’t or national courts) gov’t couldn’t tax (just request money from states)
• gov’t couldn’t regulate interstate commerce
• gov’t could create currency but each state also created its own 
• Congress could pass laws but had no way to enforce Hyper-majority required to pass laws (3/4)
• Unanimous vote for amendments
• States had the real power
• Shays’ Rebellion convinced many Americans we needed a stronger central government

THE CONSTITUTION:

Concepts in Constitution: Federalism, limited government, separation of powers, checks & balances, popular sovereignty, majority rule & minority rights

Compromises to create Constitution:

• Great Compromise (House by population; Senate each state 2)
• Three-Fifths Compromise (slaves count as 3/5 of person in figuring population & taxes, creating balance of power between North & South)
• Slave Trade & Commerce Compromise (slave trade ends in 20 years; no taxes on exports)
• Electoral College (electors selected by state legislatures will choose president not direct election)

Ratifying the Constitution:

• Federalists (strong central govt, Hamilton) v Anti-Federalists (fear of strong govt & loss of rights, more states rights, Jefferson) – becomes basis for our first 2 political parties Federalists & Dem- Repub
• Federalist Papers – written by John Jay, Alexander Hamilton, James Madison to convince NY State to ratify Constitution
• Federalist #10 – no one group will control govt because of so many competing factions 
• Federalist #51 – “If men were angels no government would be necessary”
• Bill of Rights – Amendments #1-10; added to convince anti-Fed (esp. in Virginia) to ratify Constitution; esp #10 reassures that national govt wouldn’t get too powerful

AMENDING THE CONSTITUTION: Formal Methods (in Constitution):

• Propose – by 2/3 vote of each house OR by national const convention requested by 2/3 of state legislatures
• Ratify – by 3⁄4 of state legislatures OR by specially called conventions in 3⁄4 of states (21st amend)
• Informal Methods (implied or through evolution):
• Legislative Branch – Commerce Clause expanded Congress’ power to regulate trade & business; use of elastic clause to expand powers of government
• Executive Branch – Executive Agreements & Executive Orders
• Judicial Branch – Judicial Review (started with John Marshall) allows courts to reinterpret or even set policy

 

FEDERALISM TERMINOLOGY:

• Federalism – sharing of powers between levels of government (national, state, & local); compromise between unitary & confederal forms of government
• Enumerated, Expressed, or Delegated Powers – powers of the national government listed in Constitution

1. Power to declare war & protect the nation
2. Regulate Interstate Commerce & Foreign Trade
3. Power to tax, appropriate money, & borrow money (16th amendment added income tax)

• Implied, Evolved Powers – how national government has expanded its power
• Necessary & Proper (elastic Clause) – government can do things not listed in Constitution if it relates to a listed duty/power
• Commerce Clause
• Concurrent Powers – shared by both national & states (courts, taxing, making laws)
• Reserved Powers – guaranteed to states alone by 10th amendment (regulating interstate trade, police power, passing laws for welfare & safety of people – ie education requirements, drivers’ license, alcohol, etc) 
• Prohibited Powers –
• Denied to national govt - deny habeas corpus, tax exports, award titles of nobility
• Denied to states – make treaties, declare war, coin money, tax imports or exports Grants in Aid – grants of funds given by national government to states

Grants/Funding:**(Honors by Choice)

• Categorical – given to states for specific purpose; specific guidelines; often require matching funds (welfare, school lunches, highway funds, Medicaid)
• Block - gives states funding for a general purpose; gives Congress less control over how money is spent
• Creeping categorization – tendency of block grants to become categorical due to “strings attached” 
• Mandates –
• Ruling by national government telling states to do something
• Most are in the area of civil rights or environmental protection
• Unfunded mandate – not tied to a grant; state must do something but receives no money to do it (enforce Clean Air Act; Americans with Disabilities Act; Handicapped Children’s Protection Act requiring schools to provide aides, special busses, & elevators for mentally or physically handicapped students); Congress in 1990s did pass Unfunded Mandates Act but that doesn’t end them, just says they have to say what cost would be
• Incentives – carrot & stick approach; if state wants expected funding, then it has to do something else related; courts have ruled this is constitutional because states do not have to meet the mandate if they don’t want the money and national government is not required to provide money; South Dakota v Dole (states can lose federal highway funds if don’t raise drinking age to 21)
• Devolution – movement to turn over responsibilities to the states that used to be handled by national government; begun by Republicans after received a majority in Congress in 1994; attempt to reduce the size of national government & to save money; ex – welfare; problems – states get more power but also more cost

WAYS TO INTERPRET CONSTITUTION:

• Loose Construction – Hamilton; national government can do anything not expressly forbidden to do by Constitution; uses elastic clause & commerce clause
• Strict Construction – Jefferson; national government can only do things specifically listed in Constitution

TYPES OF FEDERALISM:

• Dual Federalism – through 1937; layer cake federalism; states & national each supreme in own area; little overlap
• Cooperative Federalism – New Deal through today; marble cake federalism; overlapping jurisdiction & enforcement; federal policies must be enforced by states; states receive federal funding; each plays a role in solving a complex problem 

EVALUATING FEDERALISM: 

• Advantages:
• multiple points of access – if can’t influence at national, try state or local
• interest group cannot easily dominate – would have to control all 3 levels, not just national 
• “laboratory of democracy” – different states can try experimental programs, ie Wisc welfare reform different states have different needs – ie, does Wyoming need a speed limit?
• Disadvantages:
• duplication of programs & overlapping jurisdiction causes confusion
• small group (region, particular states) could block majority & slow things down
• inequality between states – some states might give more benefits (ie states rush to lower their welfare benefits so needy don’t move to their state)
• different state rules causes confusion or inequality – live in Missouri, work in Kansas?

HISTORY OF FEDERALISM:

• supremacy clause – if state laws or constitution disagree with national, then state has to change
• nullification – idea that a state should not have to follow a national law if it thinks it is unconstitutional or if it would cause harm to their state
• Kentucky & Virginia Resolutions – Jefferson’s reaction to Alien & Sedition Acts which he felt were unconstitutional & Supreme Court had not started ruling laws unconstitutional yet
• South Carolina Exposition – proposal by Calhoun that South Carolina should refuse to collect the Tariff of Abominations; Pres Jackson threatened to send troops rather than let them violate federal law

COURT CASES:

• McCulloch v Maryland – first test of supremacy clause; National Bank case; Maryland was taxing bank because they wanted to destroy it; John Marshall set precedent “power to tax is power to destroy” and said state must follow national law
• Gibbons v Ogden – first test of commerce clause; steamboat monopoly case; NY state had given a company the right to be the only one running a ferry between NY & NJ; Marshall ruled against because only national government can regulate interstate commerce (trade between states) and also expanded the meaning of commerce as “all business dealings”
• Changing commerce clause
• Interstate commerce Act – first use of commerce clause to pass legislation; regulated railroads after state Granger Laws were ruled unconstitutional
• Laws against monopolies
• Almost all companies do business in more than one state, so definition of “interstate” has broadened over time to include labor regulations, agriculture, banking, manufacturing
• civil rights – Commerce clause also used to enforce federal guidelines on civil rights, even if not trade- related
• Heart of Atlanta Motel v US – Supreme Court said the 1964 Civil Rights law forbidding discrimination in public places was constitutional because “discrimination affects interstate commerce”
• Restrictions on Commerce Clause:
• US v Lopez (1995) – “Gun free school zone” for schools passed by Congress was unconstitutional because schools have nothing to do with commerce
• 1994 Violence Against Women Act – Supreme Ct ruled it unconstitutional in 2000 because no link to interstate commerce (link there would be with drugs or kidnapping across state lines) & violence would be a state issue

SEPARATION OF POWERS:

Branch	What it does	Example of person
Executive	Enforces/carries out laws	President
Legislative	Makes the laws	Senator; Representative
Judicial	Interprets the laws	Supreme Court justice

CHECKS & BALANCES:

	LEGISLATIVE	EXECUTIVE	JUDICIAL
LEGISLATIVE checks....		-Senate ratifies treaties with 2/3 vote -Senate confirms appts with simple majority -Congress can override veto w/ 2/3 vote of each -House can impeach (simple maj) & Senate can convict (2/3 vote) - authorizes & appropriates funding - oversight (evolved)	-Senate confirms judicial appts with simple maj - Congress can create new courts - Congress sets salary - Congress can change number of justices on courts - impeaches judges - can rewrite legislation to get around court decisions that it disagrees with
EXECUTIVE checks....	- Pres can veto a law passed by Congress - Can refuse to enforce Congressional legislation (informal) - Proposes new policy/legislation in State of Union address (informal)		- President nominates judges - Pres grants reprieves, pardons, & commutations - Pres can decide whether or not to enforce court decisions (informal)
JUDICIAL checks....	- can rule laws unconstitutional - issue injunctions	- can rule actions of President or agencies unconstitutional

III. Game for Review of Constitutional Amendments:

• Do I Have Rights? (Simulation Game)